STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANDRA D. PADGETT, as mother and ) natural guardian of CHARLES CALEB ) PADGETT, a minor, )

)

Petitioners, )

)

vs. ) CASE NO. 95-0552N

) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case October 21, 1996, by video teleconference.

APPEARANCES

For Petitioner: No appearance at hearing.

For Respondent: W. Douglas Moody, Jr., Esquire

BATEMAN GRAHAM, P.A.

300 East Park Avenue Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Charles Caleb Padgett, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On February 3, 1995, Sandra D. Padgett, as mother and natural guardian of Charles Caleb Padgett, a minor, filed a petition (claim) with the Division of Administrative Hearings (hereinafter referred to as "DOAH") for compensation under the

Florida Birth-Related Neurological Injury Compensation Plan (hereinafter referred to as the "Plan").

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on February 8, 1995. NICA reviewed the claim, and on or about April 24, 1995, gave notice that it had "determined that such claim is not a 'birth related neurological injury' within the meaning of Section 766.302(2), Florida Statutes," and requested that "an order [be entered] setting a hearing in this cause on the issue of the compensability of this claim." Such a hearing was held on October 21, 1996.

At hearing, neither petitioner nor anyone on her behalf appeared, and no evidence was offered to support her claim. Respondent's exhibit 1 (the deposition of Charles Kalstone, M.D.), exhibit 2 (the deposition of Michael Duchowny, M.D.), and exhibit 3 (the medical records that were filed with DOAH on February 8, 1995), were received into evidence.

FINDINGS OF FACT

Initial observations

1. As observed in the preliminary statement, neither petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Ordinarily, such failing would be dispositive of the case; however, notwithstanding petitioner's failure of proof, respondent elected to offer into evidence the medical records filed with DOAH on February 8, 1995, which relate to Sandra Padgett's prenatal care, the birth of Charles Caleb Padgett (Caleb) and Caleb's subsequent development, as well as the opinions of Charles Kalstone, M.D., a board certified obstetrician, and Michael Duchowny, M.D., a board certified pediatric neurologist, to affirmatively resolve the issue as to whether Caleb had suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes.

   Ms. Padgett's antepartum course and Caleb's birth

   
   

2. The records relating to Ms. Padgett's antepartum course fail to demonstrate any complication other than polyhydramnios (an abnormal collection of amniotic fluid). Such complication did, however, place her pregnancy at risk, and she was routinely the subject of non-stress testing to assess the well being of the fetus, and periodic ultrasounds.

   
   

3. On November 10, 1992, with an estimated date of confinement of November 19, 1992, Ms. Padgett underwent a routine

   non-stress test and ultrasound. The non-stress test was reactive, a positive sign of fetal well-being; however, the ultrasound suggested that the infant was macrosomic, with an estimated fetal weight of over nine pounds. 1/

   
   

4. Based on the ultrasound results, and considering that Ms. Padgett had previously undergone a cesarean section at term, her physician decided against a trial of labor and recommended that she be admitted for a repeat cesarean delivery.

   
   

5. At or about 10:55 a.m., November 11, 1992, Ms. Padgett was admitted to Lawnwood Regional Medical Center, Fort Pierce, Florida, for the repeat cesarean section heretofore noted. At the time, Ms. Padgett was not in labor, and was not thereafter noted to have entered labor.

   
   

6. At 3:50 p.m., November 11, 1992, Caleb was delivered by cesarean section. Upon delivery, copious clear fluid was aspirated from his oropharynx and stomach, and resuscitation was noted to consist of tactile stimulation, suctioning, and oxygen blow-by. Apgars were noted as 7 and 8, at 1 and 5 minutes respectively.

   
   

7. Notwithstanding resuscitation, Caleb was noted to become dusky (pale) each time oxygen was withdrawn, and developed grunting and retractions. Consequently, Caleb was transferred to the nursery where he was initially placed on a 50 percent oxyhood. Subsequent assessment revealed transient tachypnea of the newborn (TTN), and chest x-ray revealed bilateral haziness of the lungs. Therefore, Caleb was intubated and, over the course of the next 10 hours, weaned well and was extubated to room air without further respiratory complications.

   
   

8. Neurologically, Caleb was noted to have decreased tone since birth, with some arching, and small fontanelle. The arching resolved within the first 48 hours, but the hypotomia persisted. A CT study of the brain at 48 hours of age was noted to be within normal limits. In this regard, it is observed that there was no demonstrated evidence of intracranial hemorrhage, significant mass effect or shift to the midline structures. The ventricular system appeared patent and normal for age, and there was no evidence of extra axial fluid collections. There were, however, diffuse low attenuation changes throughout the white matter which was thought to represent immature white matter, normal for age, but other etiologies could not be entirely excluded.

   
   

9. Caleb's hospital course was otherwise uneventful, and he was discharged to his mother's care on November 15, 1992.

   Caleb's development

   
   

10. Subsequent to discharge, Caleb was followed medically, and ultimately diagnosed with a very mild right hemiparesis and developmental disorder, probably mild cerebral palsy.

    
    

11. In an effort to identify the cause of Caleb's disorder, a number of radiological studies were performed. A CT of the brain taken on July 13, 1993, revealed:

    
    

    . . . encephalomalacia immediately lateral to the left caudate nucleus, manifested by linear low attenuation in the white matter and compensatory dilation of the frontal horn of the left lateral ventricle. This indicates an old unilateral vascular insult, which may well have occurred in utero. The remainder of the brain including the right hemisphere is within normal limits. There is no hydrocephalus, intracranial hemorrhage nor intracranial calcification.

    An MRI of the brain on November 29, 1993, revealed the following:

    
    

    The cerebellum and brain stem appeared normal in configuration. There is altered

    contour in the left basal ganglia and internal, external capsular region suggestive of an old infarct with signal changes in this region compensatory. There are areas of gliosis as well as porencephalic changes in the frontal horn and body of the lateral ventricle on the left compensatory to the infarct. There is some thickening of the ethmoid and maxillary sinus regions notable.

    IMPRESSION:

    1. Abnormal MRI of the brain as noted by the changes suggestive of old left basal ganglia, internal capsule and external capsular region infarct with compensatory ventricular changes of the frontal horn and body of the lateral ventricle of porencephalic nature with gliottic changes throughout

       this region. . . .

       
       

       Electroencephalograms of January 5, 1994, and May 3, 1994, were essentially normal, with no evidence of seizure activity.

12. Although the medical records indicate that Caleb suffered some oxygen deprivation at birth, the proof fails to support the conclusion that such event caused the injury to his brain which resulted in his neurological impairment. Rather, the proof, as demonstrated by Caleb's presentation at birth, hospital course, and radiological studies, indicates that Caleb's neurological impairments, more likely than not, derive from an intra-uterine stroke which significantly predated his mother's admission to the hospital or his birth.

    
    

13. In so concluding, it is first observed that the radiological studies do not demonstrate evidence of a brain injury at or about the time of birth but, rather, prenatally. Second, the focal nature of Caleb's brain injury, with resultant right-sided hemiparesis, is not generally associated with hypoxic insult. Rather, hypoxic insult generally evidences as a global injury to the brain, as opposed to the focal injury Caleb suffered. Finally, Caleb presented with dysmorphic features, an abnormality suggesting Caleb did not develop appropriately in utero. Such developmental abnormality is a risk factor, and can lead to developmental problems with motor function, language function and cerebral palsy.

    
    

14. Turning now to the significance of Caleb's neurologic impairments, it must be concluded that the proof fails to demonstrate that Caleb is permanently and substantially, mentally and physically impaired. Rather, the proof demonstrates that Caleb's physical impairment can best be described as mild, as opposed to substantial, and there is no evidence that he suffered any loss of cognitive function.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 766.301, et seq., Florida Statutes.

    
    

16. The Florida Birth-Related Neurological Injury Compensation Plan (the "Plan") was established by the Legislature "for the purpose of providing compensation, irrespective of fault, for birth-related neurological injury claims" relating to births occurring on or after January 1, 1989. Section 766.303(1), Florida Statutes.

    
    

17. The injured "infant, his personal representative, parents, dependents, and next of kin," may seek compensation under the Plan by filing a claim for compensation with the Division of Administrative Hearings within five years of the infant's birth. Sections 766.302(3), 766.303(2), 766.305(1) and 766.313, Florida Statutes. The Florida Birth-Related

    Neurological Injury Compensation Association (NICA), which administers the Plan, has "45 days from the date of service of a complete claim . . . in which to file a response to the petition and to submit relevant written information relating to the issue of whether the injury is a birth-related neurological injury." Section 766.305(3), Florida Statutes.

    
    

18. If NICA determines that the injury alleged in a claim is a compensable birth-related neurological injury, it may award compensation to the claimant, provided that the award is approved by the Administrative Law Judge to whom the claim has been assigned. Section 766.305(6), Florida Statutes. If, on the other hand, NICA disputes the claim, as it has in the instant case, the dispute must be resolved by the assigned Administrative Law Judge in accordance with the provisions of Chapter 120, Florida Statutes. Sections 766.304, 766.307, 766.309 and 766.31, Florida Statutes.

    
    

19. In discharging this responsibility, the Administrative Law Judge must make the following determination based upon the available evidence:

    
    

    1. Whether the injury claimed is a birth-related neurological injury. If the

       claimant has demonstrated, to the satisfaction of the [Administrative Law Judge], that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.303(2).

    2. Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a partici- pating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital.

    Section 766.309(1), Florida Statutes. An award may be sustained only if the Administrative Law Judge concludes that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." Section 766.31(1), Florida Statutes.

20. Pertinent to this case, "birth-related neurological injury" is defined by Section 766.302(2), Florida Statutes, to mean:

    
    

    . . . injury to the brain or spinal cord of a live infant weighing at least 2,500

    grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.

    
    

21. As the claimant, the burden rests on petitioner to demonstrate entitlement to compensation. Section 766.309(1)(a), Florida Statutes. See also, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349, 350 (Fla. 1st DCA 1977), ("[T]he burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.") By failing to appear and offer any proof, petitioner failed to sustain that burden.

    
    

22. Notwithstanding petitioner's failing, respondent offered in evidence the medical records associated with Caleb's birth, as well as the opinions of Dr. Kalstone and Dr. Duchowny. As noted in the findings of fact, such proof demonstrated that Caleb did not suffer an injury to the brain or spinal cord during the course of labor, delivery or resuscitation, and that Caleb is not permanently and substantially mentally and physically impaired.

    
    

23. Given the foregoing, the record developed in this case failed to demonstrate that Caleb suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. Accordingly, the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1), and 766.31(1), Florida Statutes.

    
    

24. Where, as here, the Administrative Law Judge determines that ". . . the injury alleged is not a birth-related neurological injury . . . he [is required to] enter an order [to such effect] and . . . cause a copy of such order to be sent immediately to the parties by registered or certified mail." Section 766.309(2), Florida Statutes. Such an order constitutes final agency action subject to appellate court review. Section 766.311(1), Florida Statutes.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED, that the petition for compensation filed by Sandra

D. Padgett, as mother and natural guardian of Charles Caleb Padgett, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 4th day of November, 1996, in Tallahassee, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1996.

ENDNOTE

1/ The ultrasound results were erroneous since Caleb was born at

7 pounds 10 ounces.

COPIES FURNISHED:

(By certified mail)

Sandra D. Padgett Post Office Box 3095

Okeechobee, Florida 34973

Sandra D. Padgett

1030 Northeast 62nd Avenue Okeechobee, Florida 34974

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association

Post Office Box 14567 Tallahassee, Florida 32317-4567

W. Douglas Moody, Jr., Esquire BATEMAN GRAHAM, P.A.

300 East Park Avenue Tallahassee, Florida 32301

Juliette Lomax-Homier, M.D. 2100 Nebraska Avenue

Fort Pierce, Florida 34954

William B. King, M.D.

1301 North Lawnwood Circle Fort Pierce, Florida 34950

Vincent Molina, M.D.

c/o Lawnwood Medical Center 1700 South 23rd Street

Fort Pierce, Florida 34950

Lawnwood Medical Center Legal Department

1700 South 23rd Street

Fort Pierce, Florida 34950

Ms. Tanya Williams

Agency for Health Care Administration Division of Health Quality Assurance Hospital Section

2727 Mahan Drive

Tallahassee, Florida 32308

Ms. Charlene Willoughby Department of Business and

Professional Regulation Consumer Services

1940 North Monroe Street Tallahassee, Florida 32399-0784

Dan Sumner, General Counsel Department of Insurance

The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So.2d 299 (Fla. 1st DCA 1992). The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 95-000552N

Orders for Case No: 95-000552N